In re J.H.

Supreme Court of West Virginia

September 5, 2017

In re: J.H.

Taylor
County 16-JA-15

MEMORANDUM DECISION

Petitioner
Father C.H., by counsel Gregory Michael, appeals the Circuit
Court of Taylor County's November 28, 2016, order
terminating his parental rights to then eleven-year-old
J.H.[1]The West Virginia Department of Health and
Human Resources ("DHHR"), by counsel Lee Niezgoda,
filed a response in support of the circuit court's order.
The guardian ad litem ("guardian"), Ashley V.
Williams Hunt, filed a response on behalf of the child in
support of the circuit court's order. On appeal,
petitioner argues that the circuit court erred in denying his
motion to set aside the adjudicatory finding of abuse and
neglect and to reopen the adjudicatory phase of the
proceedings. Because we find that petitioner failed to
satisfy his burden on appeal, we affirm.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

In
March of 2016, the DHHR filed an abuse and neglect petition
against the child's parents. [2] In its petition, the DHHR
claimed that the children's mother abused controlled
substances and that petitioner failed to protect the child
from her mother's substance abuse.

In July
of 2016, the circuit court held an adjudicatory
hearing.[3] Petitioner was not present in person at
the adjudicatory hearing, but he was represented by counsel.
At that hearing, the child's mother testified that she
was addicted to controlled substances and that petitioner
rarely visited the child and did not call on a regular basis.
The child's mother further testified that she last lived
with petitioner ten years before and their relationship was
characterized by drug use and domestic violence. The
child's maternal grandmother testified that she had
raised the child since birth and that petitioner had never
visited the child nor provided birthday or holiday gifts
until approximately 2015. At the conclusion of the hearing,
the circuit court found that petitioner's relationship
with the child was sporadic and that he failed to provide
support for the child. Further, the Court found that
petitioner's history of drug use and domestic violence
negatively affected the child. As such, the circuit court
found that petitioner abused and neglected the child.

In
October of 2016, the circuit court held a dispositional
hearing. At the outset of the hearing, petitioner moved to
reopen the adjudicatory phase of the proceedings. The circuit
court denied petitioner's motion, but it permitted him to
address the court. Petitioner claimed that he was not a drug
addict; that he had tried to help the child's mother when
they last resided together; and that the child's
grandmother was to blame for the child's mother's
substance abuse. At the conclusion of the hearing, the
circuit court terminated petitioner's parental rights to
the child.[4] This appeal followed.

The Court has previously established the following standard
of review:

"Although conclusions of law reached by a circuit court
are subject to de novo review, when an action, such
as an abuse and neglect case, is tried upon the facts without
a jury, the circuit court shall make a determination based
upon the evidence and shall make findings of fact and
conclusions of law as to whether such child is abused or
neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is
clearly erroneous when, although there is evidence to support
the finding, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit
court's account of the evidence is plausible in light of
the record viewed in its entirety." Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996).

On
appeal, petitioner argues that the circuit court erred in
denying his motion, made at the dispositional hearing, to set
aside the adjudicatory finding of abuse and neglect and to
reopen the adjudicatory phase of the proceedings. Petitioner
argues that his adjudication should have been reopened
because he was not able to be present due to circumstances
outside of his control.[5]

The
sole legal authority upon which petitioner relies is Rule
60(b) of the West Virginia Rules of Civil Procedure, which
provides as follows:

On motion and upon such terms as are just, the court may
relieve a party or a party's legal representative from a
final judgment, order, or proceeding for the following
reasons: (1) Mistake, inadvertence, surprise, excusable
neglect, or unavoidable cause; (2) newly discovered evidence
which by due diligence could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged, or a prior judgment upon
which it is based has been reversed or otherwise vacated, or
it is no longer equitable that the judgment should have
prospective application; or (6) any other reason justifying
relief from the operation of the judgment.

The
entirety of petitioner's appeal rests on the claim that
the circuit court may grant him relief from the adjudicatory
order pursuant to Rule 60(b). However, petitioner's
argument ignores Rule 81 of the West Virginia Rules of Civil
Procedure.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Under
the heading "To what proceedings applicable, " Rule
81(a)(7) provides that "Rules 5(b), 5(e) and 80 [of the
West Virginia Rules of Civil Procedure] apply, but the other
rules do not apply, to juvenile proceedings brought under the
provisions of [C]hapter 49 of the West Virginia Code."
Petitioner fails to reference any comparable rule for relief
from judgments applicable to child abuse and neglect
proceedings brought under Chapter 49 of the West Virginia
Code. He simply does not demonstrate that a circuit
court&#39;s denial of a motion to reopen adjudication can be
error. "On an appeal to this Court the appellant bears
the burden of showing that there was error in the proceedings
below resulting in the judgment of which he complains, all
presumptions being in favor of the correctness of the
proceedings and judgment in and of the trial court."
Syl. Pt. 2, Perdue v. Coiner, 156 W.Va. 467, 194
S.E.2d 657 (1973). Based on ...

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